Case Study : Edmunds & Edmunds : Appeal Allowed Six Years out of Time!
Case : Edmunds & Edmunds  FamCAFC 121 (6 July 2018)
This was a Family Law matter about an
#appeal lodged by the wife six years after #TimeLimits expired relating to #property.
The parties commenced cohabitation in 1992 and married in 1993. They separated in late 2006 or early 2007. They were divorced on 16 January 2009.
The parties had three children who were born in 1994, 1997 and 2000. The youngest child was almost 17 years old at the time of the orders of the primary judge.
1) Whether the primary judge made a final determination instead of assessing whether the wife had a prima facie case;
Ground 1 asserts:
Her Honour did not assess whether the Appellant had a prima facie case to make at trial when put at its highest, and thus failed to exercise the discretion at section 44(3) of the Family Law Act 1975: instead Her Honour:
Decided or prejudged the case under section 79(4) instead of assessing whether the Appellant had a prima facie case worth pursuing;
2) Whether the primary judge failed to assess the wife’s case at its highest;
3) Whether the primary judge erred in finding that the wife had a weak prima facie case;
4) Where the primary judge erred by not considering whether the wife had a real probability of obtaining an order for property settlement which fell short of the outcome sought by her but which was more favourable than her present legal entitlements to the property;
5) Whether the primary judge made a material error in respect of a finding about the husband’s post-separation contributions to superannuation;
6) Whether the primary judge took an irrelevant consideration into account, namely the costs of the proceedings, in assessing the wife’s prima facie case;
7) Whether the primary judge erred in failing to find that the wife’s reliance on an agreement in relation to the parties’ property was a reasonable explanation for her delay in instituting property proceedings;
8) Whether the primary judge erred in her findings as to the prejudice caused to the husband if leave is granted
HELD : Appeal allowed.
RULE APPLIED :
Where leave is required to appeal an order made pursuant to s 44(3) of the Family Law Act 1975 (Cth)
Where the primary judge’s decision is attended by sufficient doubt to warrant it being reconsidered and where substantial injustice would result if leave were refused.
HELD : The appellant is granted leave pursuant to s 44(3) to commence proceedings under s 79 of the Family Law Act 1975 (Cth).
The Court grants to the appellant wife a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by her in relation to the appeal.